The current system of labour arbitration takes too much time, is too costly, and involves too much litigation, says Ontario’s Chief Justice Warren K. Winkler.
In a speech Friday, he warned more should be done to make sure the grievance arbitration system doesn’t become dysfunctional, irrelevant, and extinct.
Guaranteeing access to justice is paramount, and that means keeping costs down, said Winkler. This includes having cases that are finished in fewer sessions and are only given the time and money they deserve — injecting proportionality.
"If you are not into proportionality these days, you are out of date. That’s an access to justice issue," he said. "The adjudicators have to insert proportionality. You have to take charge."
Winkler added labour relations have fallen behind other practice areas when it comes to proportionality and there are many ways to make these cases easier to argue.
“Access to justice is all about restructuring,” he said. "We can shorten up procedures. Parties can meet beforehand. We can change the venue, so we can have hearings in the union hall, at the company, or have videoconferences to dial down costs."
Legislative, judicial, and cultural changes have led to the woes grievance arbitration faces today compared to what Winkler called "the golden era" of labour arbitration in the 1960s, when labour disputes were resolved quickly in one session, keeping the big picture in mind instead of seeing every case as must-win.
The system is no longer going in the right direction, said Winkler. "This thing has gone off trajectory. It was a negative sea change from the golden era.”
Part of it is that the world is now more complex. Labour grievance arbitration, a resolution system designed and operated by unions, employers, and their counsel, today has to deal with human rights issues, employment standards issues, constitutional issues, and much more complex fact situations.
Queen’s University professor and arbitrator Donald D. Carter, who chairs Ontario’s Public Service Grievance Board, said things are not as dire as the chief justice suggested, but admitted that labour litigation has become much more of a lawyer’s game.
Carter added that there are positive developments, particularly in the increasing rate of settlements.
"My experience is that an increasing number of cases are being settled, and that is good news," he said. "The problem is the cases that don’t settle and go into multi-day hearings, and that’s where we have the expense and the litigious approach."
Winkler and Carter made their comments at an all-day seminar organized by Queen’s University’s Centre for Law in the Contemporary Workplace. The centre aims to train the next generation of labour and employment lawyers and scholars. With initial funding from the Law Foundation of Ontario, the centre set up shop last year and is the first of its kind in Canada.